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From the Fall 2010 issue of The News Media & The Law, page 33. After years of stalled efforts, the…

From the Fall 2010 issue of The News Media & The Law, page 33.

After years of stalled efforts, the announcement of a pilot project allowing cameras in some federal courts, along with three Senate bills on deck with similar agendas, are cues that the movement to extend cameras into the Supreme Court and federal courts is indeed rolling.

In September, the Judicial Conference of the United States announced a three-year project studying cameras in some federal district proceedings of civil cases — at the discretion of the trial judge and both parties.

Media law experts consider the decision a positive step, but a small one in an overall evolutionary process of allowing cameras into the federal courtrooms.

“I don’t get the sense we’ve reached a tipping point,” said Doug Lee, legal correspondent for the First Amendment Center. “But I think, in general, momentum is building toward cameras in the courts.”

Indeed, the Sunshine in the Courtroom Act, pushing electronic media coverage in federal courts, was first introduced in 1997, and has since been reintroduced every two years. The three bills in the Senate are unlikely to pass by the end of this congressional session on Jan. 3, but they will probably be reintroduced next year, said Kathleen Kirby, a partner at the law firm Wiley Rein LLP and general counsel for the Radio Television Digital News Association.

The pilot study, the Senate bills and positive comments from some Supreme Court justices supporting cameras in the courtroom are giving the movement a much-needed boost, although it still must overcome a few hurdles.

Judicial Conference’s Plan

The Judicial Conference, the policy-making arm of the federal courts, adopted this year’s pilot project after pressure from Congress, court interest and changes in technology, said David Sellers, spokesperson for the Administrative Office of the United States Courts. Details are still being worked out, but the cameras will be set up and used by court personnel, according to the conference’s press release.

The fact that both parties have to agree to be filmed gives Kirby pause.

“I’m concerned there won’t be enough cases where the parties agree to have cameras to really give them a basis to make a solid informed decision about the effect of the camera on a fair trial, or on appellate proceedings,” she said.

This is not the first time the federal courts have experimented with cameras. In the 1990s, the conference conducted a similar project in civil cases in six district courts and two appeals courts. Because the conference was concerned about the impact of cameras upon jurors and witnesses, the program wasn’t renewed, Sellers said.

But the project concluded that cameras did not harm court proceedings, said Barbara Cochran, the former president of the RTDNA and current Curtis B. Hurley chair in public affairs journalism at the University of Missouri School of Journalism.

Tony Mauro, the Supreme Court correspondent for The National Law Journal and a Reporters Committee for Freedom of the Press steering committee member, said he doesn’t understand why the courts need to conduct the project again.

“They’re trying to make baby steps in order to prevent having to make the big step,” Mauro said. “The lower courts have tried this almost 20 years ago and I don’t know why they need to experiment again. I think the case has been made pretty convincingly.”

The battle for cameras in courts has been ongoing since cameras were first banned from federal criminal courts in 1946. In 1965, the Supreme Court further impeded camera access when it overturned a conviction 5-4, arguing that TV coverage had hampered witness testimony and a defendant’s right to a fair trial inEstes v. Texas

In 1996, the conference allowed federal appeals courts to welcome cameras, and the U.S. Courts of Appeals in New York City (2nd Cir.) and San Francisco (9th Cir.) still do, according to the conference’s press release.

Today, all 50 states allow cameras in their courtrooms in some form, although the District of Columbia does not, according to recent research from the National Center for State Courts.

Stacey Woelfel, news director at KOMU in Columbia, Mo., and the chairman of the Radio Television Digital News Foundation, said the 1970s were a golden age of state courts opening their doors to cameras and now the focus is entirely on federal courts. The public needs to see how court systems work, he said.

“They [the public] had to learn how trials work from watching ‘Law and Order,’ and they’re not all like that, so it’s important for people to see how the system works, how it’s broken and how it needs to be fixed,” Woelfel said.

Cochran agreed that the public should have access to Supreme Court and federal proceedings.

The Supreme Court and cameras

Although the Supreme Court has long opposed allowing cameras, the tide might be changing. The court’s newest justice, Elena Kagan, has made comments generally supporting cameras in the court and the Supreme Court has begun releasing audio tapes every week instead of at the end of the term. 

Justice Sonia Sotomayor has said she’s volunteered for camera-access cases in the past.

Justice Antonin Scalia, the longest-serving justice, told California law students in September that video snippets of trials on the news would “distort the public perception of the court.”

Chief Justice John Roberts is vehemently opposed to cameras in the courts, as is recently retired Justice David Souter, who once told a House Appropriations subcommittee in 1996: “I think the case is so strong, that I can tell you the day you see a camera come into our courtroom, it’s going to roll over my dead body.”

Many judges’ hesitation to allow cameras stems from their belief that it will hamper a fair trial, as trial participants will play to the cameras. Kirby said many judges are also afraid of losing anonymity from being placed “under this microscope.”

“A lot of times the media is its own worst enemy,” Lee said, referring to the massive media presence that surrounded the trials of O.J. Simpson and Lindsay Lohan.

After the intensive coverage of the O.J. Simpson trial, the movement to install cameras took a few steps back. Judges in California, who had a history of opening up its courtrooms, began closing courtrooms to journalists and making it more difficult to film, Cochran said.

“People who think there should be order and decorum and dignity about the courts recoil when they see somebody . . . [on trial for] DUI surrounded by TV cameras walking into a courtroom and having the proceedings broadcast throughout the country,” Lee said

New York attorney Mark Zauderer was part of the New York State Bar Association 2001 study, which recommended that New York courts accept cameras at the discretion of judges.

After interviewing lawyers and judges who participated in New York’s 10-year trial period for cameras in its courts, Zauderer’s committee found “no substantial evidence that cameras adversely affect the outcome of trials,” the report said. Of the 22 lawyers asked if cameras affected a case’s outcome, 20 replied it had no affect.

Zauderer found some lawyers and prosecutors who griped about cameras: Some worried cameras would prejudice their clients, while others were apprehensive that witnesses wouldn’t testify for fear of being recognized, particularly in gang conflicts. Still, Zauderer said the positives outweighed the negatives, citing the 1999 Amadou Diallo case. Diallo was a 20-year-old West African immigrant from the Bronx, who was standing in his doorway when police shot him 41 times. The trial gained so much pre-trial publicity it was moved to Albany, where cameras were allowed to film the four police officers who shot Diallo being acquitted. The presence of cameras helped the public comprehend the acquittal, he said.

Indeed, other studies of cameras in the courts have found similar results. TruTV (formerly Court TV) surveyed 96 judges who presided over 100 cases in Court TV’s first year, and all of the 70 who responded reported that the cameras were unobtrusive. The Federal Judicial Center discovered the same outcome when it reviewed the Judicial Conference’s pilot study in the 1990s.

“You can study this until you exhaust yourself,” said California District Court of Appeals Judge Richard Huffman (4th Cir.). Huffman was chairman of a task force analyzing California’s televising policy after the Simpson trial. It also concluded that cameras do not hinder the fairness of a trial, according to the book “Cameras in the Courtroom: Television and the pursuit of Justice.”

The Supreme Court’s decision to release audio tapes on the Friday after hearings occur is “one step forward and one step back,” Cochran said. Starting with the contested presidential election in 2000, the Supreme Court had released audio immediately after a handful of major cases involving intense media interest, but the policy was discontinued.
Usually, audio tapes aren’t available until the beginning of the next term. The audio tapes’ release days later isn’t helpful to journalists who need audio clips the day of an oral argument, Cochran said, but it’s still a step toward electronic coverage in the court.

“They’re reluctant to make a move that’s going to be deemed controversial and maybe audio will be the path that will lead us there first,” she said.

The Senate became televised in the same manner soon after it allowed National Public Radio to broadcast audio of its hearing on the Panama Canal in 1978, Cochran said.

However, the cameras in the Senate and House, like the upcoming Judicial Conference experiment, are owned and operated by court personnel — which can omit conflicts like fights breaking out, yelling or distractions in the gallery from the feed, said Bruce Collins, corporate vice president and general counsel for C-SPAN. He said every now and then you’ll see people on screen looking distracted, and have no idea why.

“We really don’t have an independent journalistic view of Congress. Congress is basically covering it up,” Collins said. “There should be cameras operated by independent journalists, but we’re realists, and we understand that the House and the Senate are not likely in your lifetime to ever allow that.”

If journalists are reporting on court stories, Collins said they should be able set up their own equipment during the conference experiment at no cost to the government.

Three bills in the Senate

The Senate Judiciary Committee passed three bills permitting cameras in federal and Supreme Courts this year, which were sent to the floor.

The first bill, S. 446, requires the Supreme Court to permit TV cameras unless a majority of judges decide that cameras would violate an individual’s rights. The bill was introduced by Sen. Arlen Specter, D-Pa., in February 2009 and was passed to the Senate floor on June 18 of this year.

Specter said Senate Majority Leader Harry Reid, D-Nev., promised him a vote on his bill, but it doesn’t seem like the bill will advance, Mauro said.

“Yet another time it will probably fail,” Mauro said. “It’s very frustrating. There seems to be a lot of reticence by the Congress about telling the Supreme Court how to run itself. I think that reticence is not necessary.”

The second bill, S. 657, also known as the Sunshine in the Courtroom Act of 2009, was introduced in March 2009 by Sen. Chuck Grassley, R-Iowa, and permits judges to decide whether to allow electronic coverage of proceedings, though jurors’ faces cannot be shown and witnesses’ faces and voices can be obscured if they ask. The bill was also sent to the Senate floor.

The third, S. Res. 339, introduced by Specter in November 2009, is a non-binding resolution that gives the “sense of the Senate” in urging the Supreme Court to allow taping.

The House’s version of the Sunshine in the Courtroom Act 2009 was submitted to a House subcommittee in July.

Specter has long championed cameras in the courtroom. He has also been tenacious in asking Supreme Court nominees how they stand on cameras in the courts, Cochran said. Specter lost his reelection bid in this year’s Democratic primary, after switching from the Republican party, leaving it uncertain if the cameras-in-the-courts issue will continue to be pursued in the next Congress.

“There may be somebody who will pick up the torch, but it’s always a struggle,” Mauro said.

Many media experts estimate cameras will be in federal courts in five to 10 years.

“I think cameras in the court is an evolutionary process and I think as judges take the bench who are more comfortable with the Internet age, cameras will be viewed as less a threat and more part of the territory,” Lee said.